December 1997 | Volume 48, Issue 8
Can it be fair? Humane? Deter crime? These very current questions troubled Americans just as much in the day of the Salem witch trials as in the day of Timothy McVeigh
Chief Justice Oliver Wendell Holmes of the Massachusetts Supreme Judicial Court spent part of May 6, 1901, writing about the death penalty, and specifically about electrocution. Earlier that day lawyers for Luigi Storti, a twenty-seven-year-old Italian laborer without a family in America, convicted for the murder of a fellow immigrant in Boston’s North End, had argued that electrocution was punishment “cruel or unusual,” proscribed by the Massachusetts Declaration of Rights, a charter nine years older than the federal Bill of Rights.
Until 1898 the mode of capital punishment in Massachusetts, as in almost every other state that inflicted death, had been the gallows. The electric chair was supposed to eliminate the uncertainty and pain of hanging (where miscalculation of the “drop” distance might result in slow strangulation or ripping the head from the body), with the aid of the nineteenth century’s secular deity, science, and that newly harnessed miracle, electricity.
Although Storti was to be the first person ever to die in Massachusetts’s electric chair, he naturally cared less about the method of execution than about mere survival. His lawyers’ first move after the guilty verdict had been a straightforward review by the Massachusetts high court focusing on claims of legal error, such as that the statements he had made to the police were not voluntary. That appeal had failed, and so had an effort to obtain an executive commutation and a legislative attempt to abolish the death penalty completely. Then, days before his execution, Storti developed pulmonary hemorrhages, probably from tuberculosis, that left him so weak he would have to be carried to the electric chair. Unwilling to execute a dying man—and hoping for a natural death that would solve everyone’s problems—Gov. Murray Crane stayed the execution until May 11.
Then Storti’s health began to improve, and his lawyers presented the petition that Holmes and his colleagues had just considered. With less than a week remaining before execution, Holmes—a fast worker under any circumstances—set out the Court’s views promptly so that, as he put it, “we may avoid delaying the course of the law and raising false hopes in [Storti’s] mind.”
The planned execution, Storti’s lawyers had argued, was cruel or unusual punishment because the procedure involved not only pain and death but also psychological anguish. No, replied Holmes, electrocution was “devised for the purpose of reaching the end proposed as swiftly and painlessly as possible.” Any mental suffering, he added, “is due not to its being more horrible to be struck by lightning than to be hanged with the chance of slowly strangling, but to the general fear of death. The suffering due to that fear the law does not seek to spare. It means that it shall be felt.” Holmes was merely saying in his elegant, direct way that the death penalty sought as much to deter future criminals as to punish current ones.
Storti’s lawyers immediately petitioned for a federal writ of habeas corpus, this time arguing that Storti’s detention somehow violated a treaty between Italy and the United States. Impatiently the federal circuit court in Boston denied the petition and even (as lower federal judges were permitted to do) prohibited the right to appeal to the United States Supreme Court.
Undaunted, counsel for Storti persuaded United States Supreme Court Justice Horace Gray to allow the appeal to proceed, meanwhile lodging another appeal, which Holmes quickly rejected, arguing that irreconcilable laws were requiring both “special” and “solitary” confinement before execution. On December 2, 1901, the Supreme Court permanently ended Storti’s procedural odyssey. The grounds purporting to justify Storti’s release, said Justice David Brewer for a unanimous Court, were “wholly without foundation.” He called the case “another of the numerous instances” in which applications and appeals were taken “quite destitute of meritorious grounds, and operating only to delay the administration of justice.”
It is difficult to tell whether the exertions on Storti’s behalf drew their inspiration from the death penalty itself or from the fearsome new technology. New York had enacted the first electrocution statute in 1888, responding to the report of a special commission that it represented “the most humane and practical method known to modern science of carrying into effect the sentence of death.”
We tend to consider misgivings about the death penalty a late-twentieth-century concern. In fact, in 1794 Pennsylvania abolished death as a punishment for all crimes except “willful, deliberate, and premeditated” killing. Even earlier, in the colonies as in Britain, the courts had applied a concept called “benefit of clergy” to decapitalize manslaughter—that is, killing without malice. In medieval England clerics could insist on being tried in ecclesiastical courts; they proved their status by demonstrating literacy (because, generally, only they knew how to read). Later the “benefit” became available to any demonstrated reader. By 1707 even an illiterate first offender could escape the noose, after being branded on the thumb to preclude any subsequent application. Louisiana passed an abolitional legislative resolution in 1830 and revoked it in 1846. Also in 1846 Michigan abolished capital punishment for all crimes but treason; in 1853 Wisconsin abolished it absolutely.
Other states tried to deal with the problem by giving the jury power to recommend against death. It became common also to classify murder by degrees. Typically, first-degree murder entailed not only malice—unjustified killing—but also premeditation, defined, not very helpfully, as reflection, even if for only a few seconds, followed by the decision to kill and then by the killing. In essence, the jury could decide life or death according to its own view of the facts, and in all cases, of course, the jurors retained the unsanctioned but uncontrollable right to disregard even compelling evidence and acquit: jury nullification. As Holmes said in another context, jurors can “let a little popular prejudice into the administration of law (in violation of their oath).” Indeed, repeated demonstrations of jurors’ reluctance to render a verdict that would mandate the death sentence led, as early as the 1830s, to an editorial lament in a Rhode Island newspaper with an unintended irony: “Unless the prisoner, from his color or extraction, is cut off from ordinary sympathy, he is almost sure of an acquittal.”
The fact is that, historically, we have never regarded the death penalty placidly. Curtis Bok, a judge in Pennsylvania on both the trial and the appellate benches, once asked, “Why is the State so ashamed of its process that it must kill at dead of night in an isolated place and on an unnamed day?” The man who pulls the switch generally stands hidden from everyone’s view. When Storti died, the press account pointedly noted the anonymity of the executioner. Even when death comes by a firing squad, the round in one of the rifles is blank, presumably so that no one will know for certain that his was a fatal shot.
The death penalty provokes in us dreadfully conflicted feelings, beginning with recognition of the need for a fair procedure in determining guilt and imposing punishment. Like Francis Bacon four centuries ago, we know that “revenge is a kind of wild justice, which the more man’s nature runs to, the more ought law to weed it out.” Thus we recoil from lynch law, either in fact (Leo Frank and Emmett Till) or in fiction ( The Ox-Bow Incident ).
Yet even as we insist on due process, we express impatience with the inhibitions that fair procedure imposes. In part an appellate court’s role is to restrain the mob spirit; still, what judges see as ensuring constitutional and legal rights, the public and the victim’s family often denounce as legal technicalities. Certainly, when a client’s life is at stake, a good, honest lawyer will try every available argument, just as Storti’s did. Hope does ever bloom; remember, too, what Samuel Johnson once advised Boswell: “An argument which does not convince yourself, may convince the judge to whom you urge it.” It was also Johnson who said, “When a man knows he is to be hanged in a fortnight, it concentrates his mind [and, one might add, his lawyer’s mind] wonderfully.”
Counsel’s ingenuity and desperate effort do not always sit well with the appellate courts. Justice Brewer’s impatience with Storti has found echoes in our own time, when Supreme Court justices have expressed similar unhappiness with not only defendants and lawyers but also some lower court judges. Nonetheless the Court as an institution and the justices themselves have found the implications of the death penalty not so easy to fathom. Furman v. Georgia , the 1972 decision that for a time eliminated executions in this country, produced no fewer than nine separate opinions, one per justice: five concurring with the one-page anonymous per curiam order, four dissenting. Two of the “majority” justices thought the death penalty cruel and unusual punishment per se; the others thought it unconstitutionally disparate in its effects: Most of those executed were poor, young, ignorant, and perhaps the victims of racial discrimination.
Eight years later, when the Massachusetts Supreme Judicial Court struck down the commonwealth’s new Furman -shaped death penalty statute, it condemned the psychological agony inherent in the punishment, directly refuting Holmes’s tough words to Storti. “Mental pain,” Chief Justice Edward Hennessey wrote, quoting Justice Brennan in Furman , “is an inseparable part of our practice of punishing criminals by death, for the prospect of pending execution exacts a frightful toll during the inevitable long wait between the imposition of sentence and the actual infliction of death.” Of course, part of the waiting period results from the drawnout appellate process.
If the mental-pain view prevails, no form of execution can ever pass constitutional muster. After all, even lethal injection, supposedly the most painless method, still involves the “long wait” following conviction while the legal process tries to ensure that death, the one punishment not subject to revision, comes only to the truly guilty. And electrocution, whose supposed absence of pain so attracted the Victorians, has turned out to hold its own horrors. Lewis E. Lawes, for many years the warden at Sing Sing Prison, had this to say about what happens in the electric chair: “The [prisoner] leaps as if to break the strong leather Straps that hold [him]. Sometimes a thin wisp of smoke pushes itself out from under the helmet that holds the head electrode, followed by a faint odor of burning flesh. [The body heats to 130 degrees—a little less than rare roast beef.] The hands turn red, then white, and the cords of the neck stand out like steel bands.”
The newspaper account of Storti’s death omitted some of the details, but the reporter had certainly seen the same sights that Warden Lawes had: “The body of Storti surged up against the tightly buckled straps, which creaked and strained under the pressure, the veins in his neck and wrists and face swelled.” Afterward, the reporter wrote, “none of the other witnesses would say anything of particular interest about the execution, except that nothing could be more sudden or certain in producing death than electricity as it is applied in the prison.”
Deliberately using the power of the state to take a human life continues to raise moral and political issues that legislators find uncomfortable to face and judges find impossible to solve. Whether today’s out-of-sight executions more effectively deter crime than did the public spectacles of hangings in earlier times is not the only question. Over the last twenty years society has become more willing to recognize the interests of victims or (in cases of murder) their families in the punishment process. Elected local prosecutors, when deciding, for example, to explore the possibility of a plea to second-degree murder or rhanslaughter, pay careful attention to the survivors’ desires. Beyond that, at sentencing time, even when the judge has no discretion, many states give family representatives the right to vent their feelings in open court.
In short, although revenge may indeed be a kind of wild justice, we are now coming to think that perhaps the law needs not to root it out but to regulate it. Whether that regulation should involve the latter-day gallows tree is a question that is anything but new, yet that remains and will remain for all of us to ponder and—however we can—answer.